American Federation of Government Employees, Local 507 (Union) and United States, Department of Veterans Affairs, Medical Center, West Palm Beach, Florida (Agency)

[ v58 p578 ]

58 FLRA No. 143

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 507
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
WEST PALM BEACH, FLORIDA
(Agency)

0-AR-3646

_____

DECISION

June 6, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James L. Reynolds filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator found that the Agency did not violate the parties' agreement, law or regulations when it temporarily changed the work schedules of three employees. For the following reasons, we deny the Union's exceptions.

II. Background and Arbitrator's Award

As relevant here, a supervisor held a department meeting and solicited volunteers for weekend work. The supervisor told the employees that only compensatory time, and no overtime pay, was available for the work. When no one volunteered, the supervisor temporarily changed three employees' work schedules so that their forty-hour week included weekend hours.

The Union filed a grievance, which was unresolved and submitted to arbitration. The Arbitrator framed the issue as: "Did the Employer violate the Collective Bargaining Agreement or applicable Federal Law and regulations by temporarily changing the work schedules of three employees in the Electrical Department at the West Palm Beach VA Medical Center, without negotiating with the Union?" Award at 1.

The Arbitrator found that the Agency did not violate Article 46, Section 3 of the parties' agreement by failing to give the Union advance notice of the department meeting. [n2] In this connection, the Arbitrator found "no evidence" that the Union regularly received advance notice of department meetings, and he concluded that such meetings are not covered by Article 46. In reaching this conclusion, the Arbitrator stated that requiring advance notice of every department meeting "would likely prove to be more a burden than a benefit to both parties." Id. at 15.

The Arbitrator also found that the Agency did not violate Article 46, Section 4 of the agreement by changing the schedules. [n3] The Arbitrator determined that, although the Agency did not supply the Union with certain information when it notified the Union of the schedule changes, this did not violate Article 46, Section 4 because the Agency had no obligation to bargain over the changes. In this connection, the Arbitrator found that the parties had not agreed to any contractual limitations on the Agency's right to change schedules, and Article 20, Section 3(J), requires only "notice" to, and "consultation" with, the Union with respect to schedule changes.[n4] Id. at 18.

[ v58 p579 ] The Arbitrator concluded that the Agency did not violate the parties' agreement, law or regulation, and he denied the grievance.

III. Positions of the Parties

A. Union Exceptions

The Union argues that the award is contrary to law in four respects. First, the Union contends that the award is contrary to "law, rule or regulation" because the Arbitrator found that the Agency was not required to bargain over the schedule change. Exceptions at 1. Second, the Union claims that the Arbitrator erred in concluding that management rights under § 7106(a) of the Statute are not limited by § 7106(b)(2) and (3).Third, the Union asserts that the award is contrary to 5 U.S.C. § 6101(a)(2)(A). [n5] Fourth, the Union states that the Arbitrator's statement that notice to the Union of every department meeting "would likely prove to be more a burden than a benefit to both parties," demonstrates that the award is contrary to § 7114(a)(2)(A) of the Statute. [n6]Id. at 2. In addition, the Union argues that the Arbitrator "erred in applying" Article 20, Sections 3(F) and (H); Article 20, Section 1; and Article 46, Section 3 of the parties' agreement. [n7]Id at 1.

B. Agency Opposition

The Agency argues that the Arbitrator correctly interpreted the contract and did not find that management rights under § 7106(a) are unlimited.

IV. Preliminary Issues

Under 5 C.F.R. § 2429.5, the Authority will not consider issues that could have been, but were not, presented to the Arbitrator. [n8]AFGE, 57 FLRA 769 (2002). The Union argues that the award is inconsistent with Article 20, Sections 3(F) and 3(H) of the parties' agreement. There is no evidence that the Union relied on Article 20, Sections 3(F) and 3(H) before the Arbitrator, although it could have done so. See Award at 5-6; Union Post-Hearing Brief. Accordingly, the Union is not permitted to raise these issues for the first time here, and we decline to consider them.

V. Analysis and Conclusions

A. The award is not contrary to law.

The Union alleges that the award is contrary to law in various respects. When an exception involves an arbitration award's consistency with law, the Authority reviews the question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1. Section 7106(b)(2) and (3) of the Statute

The Union argues that the Arbitrator erred in concluding that management rights under § 7106(a) of the Statute are not limited by § 7106(b)(2) and (3). However, the Arbitrator did not reach that conclusion. In fact, he expressly recognized that "[t]he provisions of a Collective Bargaining Agreement between the parties . . . limit" management's rights under § 7106(a). Award at 16. Further, he did not find that the contract provisions relied on by the Union were unenforceable. Thus, the Union's exception provides no basis for finding that the award is contrary to § 7106(b)(2) and (3). Accordingly, we deny the exception. [ v58 p580 ]

2. 5 U.S.C. § 6101(a)(2)(A)

In pertinent part, 5 U.S.C. § 6101(a)(2)(A) provides that "[t]he head of each Executive agency . . . shall . . . establish a basic administrative workweek of 40 hours for each full-time employee in his organization[.]" The Arbitrator did not find, and there is no basis for the Authority to find, that anything other than a basic administrative workweek of forty hours was established in this case. In fact, the employees' workweek was changed so that they would not work more than forty hours in the basic administrative workweek. Accordingly, the Union's exception provides no basis for finding that the award is contrary to 5 U.S.C. § 6101(a)(2)(A). Accordingly, we deny the exception.

3. Section 7114(a)(2)(A) of the Statute

The Union states that the Arbitrator's statement that notice to the Union of every department meeting "would likely prove to be more a burden than a benefit to both parties," is contrary to § 7114(a)(2)(A) of the Statute. Exceptions at 2. However, the Arbitrator was addressing whether the contract provided the Union with the right to attend the department meeting; he was not addressing whether the Union had a statutory right to attend. As discussed infra, the Union has not demonstrated that the Arbitrator's contract interpretation is deficient under the "essence" standard.

The fact that Article 46, Section 3 of the agreement contains wording similar to § 7114(a)(2)(A) did not require the Arbitrator to address whether that section of the Statute was violated. [n9]Unlike this case, in cases where the Authority has reviewed whether an arbitral interpretation of contractual wording is consistent with the Authority's interpretation of the Statute, statutory standards were raised to and/or addressed by the arbitrator. See AFGE, Local 507, 58 FLRA 378, 379-80 (2003) (Chairman Cabaniss dissenting) (citations omitted). There is no reason advanced that the Authority should extend its review to other cases, especially since finding a statutory unfair labor practice raised every time a contract provision contains wording similar to that describing a statutory obligation "could significantly expand the number of decisions subject to judicial review, thereby undercutting Congress' intent that arbitration awards be final." Id. (citing Overseas Educ. Ass'n v. FLRA, 824 F.2d 61, 66 (D.C. Cir. 1987)).

4. The Union's remaining contrary to law claim

The Union claims that the Arbitrator's finding that the Agency was not required to bargain over the schedule change is contrary to "law, rule or regulation . . . ." Exceptions at 1. Unlike its other contrary to law arguments, the Union's claim on this point does not cite, or explain how the award is contrary to, any specific law, rule, or regulation. As such, the Union's claim is denied as a bare assertion. See AFGE, Local 2274, 57 FLRA 586, 589 n.6 (2001).

B. The award draws its essence from the agreement.

We construe the Union's assertion that the Arbitrator "erred in applying" the parties' agreement as an argument that the award fails to draw its essence from the agreement. Exceptions at 1. In resolving exceptions contending that an award fails to draw its essence from a collective bargaining agreement, the Authority applies the deferential standard of review that the Federal courts apply in reviewing awards in the private sector. See, e.g., SSA, Woodlawn, Md., 54 FLRA 1570, 1579 (1998) (citing United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (DOL)). In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. DOL, 34 FLRA at 575. The Authority and courts defer to arbitrators in this context "because it [i]s the arbitrator's construction of the agreement for which the parties have bargained." Id. at 577.

Article 20, Section 1 provides that schedule changes are governed by the notice requirements of Article 46. Section 4 of Article 46 requires the Agency to provide the Union with advance notice of certain changes, along with "all information/material relied upon to propose the change(s) in conditions of employment." Award at 6. The Arbitrator found that the Agency failed to provide the Union with relevant information when it notified the Union of the schedule changes. Nevertheless, he concluded that this did not [ v58 p581 ] violate Section 4 because that section requires that information be provided only "so that the Union is in a position to bargain effectively[,]" and the Union had no contractual right to bargain here. Award at 17. The Union provides no basis for finding that it was irrational, unfounded, implausible, or in manifest disregard of the agreement to find that Section 4 requires provision of information only where the Agency has an obligation to bargain. Thus, the Union provides no basis for finding that the award fails to draw its essence from Section 4 or Article 20, Section 1 of the agreement.

Article 46, Section 3 provides the Union with the right to notice and an opportunity to attend certain formal discussions. The Arbitrator found "[n]o evidence" that the Union had, in the past, been regularly provided notice of regular departmental meetings, and he concluded that the departmental meeting at issue here was not covered by Section 3. Award at 15. The Union provides no basis for finding that the Arbitrator's interpretation of Section 3 is irrational, unfounded, implausible, or in manifest disregard of the agreement.

Accordingly, we deny the exception.

VI. Decision

The Union's exceptions are denied.

Concurring Opinion of Chairman Cabaniss:

I write separately to emphasize my belief that contract provisions mirroring a party's rights and obligations under the Statute must be interpreted consistent with the Authority's precedent regarding those same rights and obligations, absent some evidence offered by a party (and the provision subsequently interpreted by the arbitrator) to show that the provision has some different meaning. See AFGE, Local 507, 58 FLRA 378, 381-383 (2003). The present instance reflects such a contractual change to language seeming to mirror a statutory provision. In this case, the arbitrator found that the parties had in fact contractually modified the Union's statutory rights under § 7114(a)(2)(A), and since his contractual interpretation of the contractual right was not irrational, unfounded, implausible or in manifest disregard of the agreement, I agree with the majority's conclusion that the Union's exception based upon a failure to draw its essence from the agreement should be denied.

Footnote # 1 for
58 FLRA No. 143
- Authority's Decsion

Chairman Cabaniss' separate opinion is set forth at the end of this decision.

Footnote # 2 for
58 FLRA No. 143
- Authority's Decsion

Article 46, Section 3 provides, in pertinent part:

The Union will be provided reasonable advance notice and be given the opportunity to be present and to participate at any formal
discussions between one or more representatives of the Department and one or more employees in the unit or their representatives
concerning any grievance, personnel policy or practice, or other general condition of employment.

Award at 6.

Footnote # 3 for
58 FLRA No. 143
- Authority's Decsion

Article 46, Section 4 provides, in pertinent part:

The Department shall provide reasonable advance notice to the appropriate Union official(s) prior to changing conditions of
employment of bargaining unit employees. The Department agrees to forward, along with the notice, a copy of any and all
information/material relied upon to propose the change(s) in conditions of employment. All notifications shall be in writing to
the appropriate Union official, with sufficient information to the Union for the purpose of exercising its full rights to bargain.

Award at 6.

Footnote # 4 for
58 FLRA No. 143
- Authority's Decsion

Article 20, Section 3(J) provides, in pertinent part: "Shift schedules and areas of assignment will be posted at least fourteen
(14) days in advance." Award at 5.

Section 7114(a)(2)(A) provides, in pertinent part: "An exclusive representative . . . shall be given the opportunity to be represented
at . . . any formal discussion . . . concerning any grievance or any personnel policy or practices or other general condition of
employment."

Footnote # 7 for
58 FLRA No. 143
- Authority's Decsion

Article 46, Section 3 is set forth, in pertinent part, supra note 2. Article 20, Section 3(F) provides, in pertinent part, that
"[r]otation of weekend and holidays will be on a fair and equitable basis . . . and may be a subject for Local bargaining." Exceptions
at 2. Article 20, Section 3(H) provides, in pertinent part, that "[s]eniority among employees with comparable qualifications
will be the determining factor for access to a preferred tour." Id. Article 20, Section 1 provides, in pertinent part, that "[a] change
in the administrative workweek and changes in the regularly scheduled administrative workweek are considered changes in conditions
of employment for purposes of the notice requirement of Article 46 . . . ." Award at 5.

Footnote # 8 for
58 FLRA No. 143
- Authority's Decsion

5 C.F.R. § 2429.5 provides, in pertinent part, that "[t]he Authority will not consider evidence offered by a party, or any issue,
which was not presented in the proceedings before the . . . arbitrator."